House targets NPDES permits, EPA seeks delay

The EPA requests court to approve a six-month delay for implementation of new pesticide permitting process.

House introduces bill, HR 872, to address permitting excesses.

Commodity groups "fired up" to take on permits.

If an EPA-requested six-month extension is granted by the courts, the bulk of the 2011 cropping season will avoid onerous new pesticide permitting requirements long in development at the agency. Even if the EPA had not made the March 3 request, the new National Pollution Discharge Elimination System (NPDES) permits are the target of a recent House bill.

Until a Sixth Circuit Court three-judge panel ruling in early 2009, the EPA was content with exempting label-adhering pesticide applications from the permitting requirements of the Clean Water Act. That changed when the panel ruled pesticides are “pollutants” in regard to the CWA and the EPA must require farmers to obtain NPDES permits for applications made to, over or near bodies of water.Further complicating the situation: the new permits under CWA would be duplicative since pesticide applications are already regulated under the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA).

While environmental groups cheered the court decision, the burdensome NPDES permitting process quickly became a concern for, among others, producers, ranchers, consultants, applicators, commodity groups, those tasked with mosquito control, and state governments.

Over the last several years, the courts – including the U.S. Supreme Court – have provided no help to those opposed to the new permits. Meanwhile, the EPA has struggled to meet NPDES implementation deadlines.

In fact, the EPA has been called out repeatedly for an unwillingness to admit the length of time required to set up such a permitting system. Last September, Arkansas Sen. Blanche Lincoln, then-Chairman of the Senate Agriculture Committee, was pointed in her remarks to EPA Administrator Lisa Jackson.

“CWA regulations are an unnecessary burden not only to applicators but to state regulatory authorities,” Lincoln told Jackson. “States like Arkansas are underfunded and struggle to keep up with existing laws and regulations and don’t need to spend time enforcing regulations that don’t improve the environment. … States are supposed to implement their permitting programs by April, 2011. Frankly, I’m amazed your agency expects states to implement that general permit into law in a mere four months time. … We’re at the end of September and the possibility of (adhering to the proposed EPA) timeframe become more and more bleak.”

HR 872

With that background, on Thursday, the EPA requested the court-imposed April 9 deadline be extended to October 31, 2011.Just a day earlier, Michigan Sen. Debbie Stabenow, Chairman of the Senate Agriculture Committee, wrote to Administrator Jackson, urging the agency to ask for a nine-month delay.

“Providing additional time will give the relevant regulatory agencies enough time to properly implement the Court’s 2009 ruling, which made applications of aquatic pesticides subject to NPDES permitting requirements,” wrote Stabenow.

Meanwhile, on the House side, a bipartisan bill, HR 872 (Reducing Regulatory Burdens Act of 2011), was introduced on Tuesday. If the new requirements kick in on April 9, “pesticide applications not covered by a National Pollutant Discharge Elimination System (NPDES) permit are subject to a fine of up to $37,500 per day per violation,” said a House Agriculture Committee press release announcing the bill. “In addition to the cost of compliance, pesticide users will be subject to an increased risk of litigation under the citizen suit provision of the CWA. The legislation would amend FIFRA and the CWA to clarify congressional intent and eliminate the requirement of a NPDES permit for the use of FIFRA-registered pesticides.”

HR 872 would “eliminate an unnecessary and duplicative regulatory burden imposed by an uninformed court decision,” said Oklahoma Rep. Frank Lucas, Chairman of the House Agriculture Committee.

Minnesota Rep. Collin Peterson, ranking member, said “Congress never intended for farmers and ranchers to meet additional permit requirements for pesticide applications under FIFRA. The last thing producers need is more regulation and this bill will relieve producers from meeting a costly regulatory burden that would have little to no environmental benefit.”

Bob Stallman, president of the American Farm Bureau Federation, urged Congress to “immediately pass H.R. 872. Time is of the essence. We call on Congress to take action now to approve H.R. 872. It provides a permanent solution to the regulatory quagmire of duplicative pesticide permitting requirements facing farmers, ranchers and others who use pesticides.”

NCC

On Thursday, just prior to EPA’s request for a delay, Keith Menchey, who covers science and environmental issues for the National Cotton Council, spoke with Delta Farm Press about the NPDES permitting, legislation, and the EPA request for a delay. Among his comments:

“Some lawmakers on the House side have introduced a bill, HR 872, which would amend both the Clean Water Act and FIFRA. It would exempt pesticide use from any CWA permitting.

“Basically, it would take us back to EPA’s 2006 rule that was vacated by the Sixth Circuit Court decision.

“Because it amends both CWA and FIFRA, the bill would see jurisdiction by both the House Agriculture Committee and the House Committee on Transportation and Infrastructure.

“We’ve got a very close timeline with this since the effective date (for the EPA new pesticide application regulations) is April 9 – unless the court chooses to provide an extension.

“So, both committees will have to mark up (HR 872). Hopefully, it will get enough support. Perhaps it will get onto the suspension calendar, which would send it over to the Senate with a bit more strength.” That’s because “a suspension vote needs the support of two-thirds of the members.”

On Stabenow’s letter…

“Stabenow has sent a letter to EPA (urging Administrator Lisa Jackson) to ask the court for an extension. If EPA does that and we get an extension, we’ll have a bit more time to work on this.

“But, as of now, we can’t assume that will happen. And the effective date is still April 9.

“We’ve already been talking to the Senate side on a legislative fix.”

Do you think the EPA will buck against (Stabenow’s request)?

“My personal observation is that EPA is seeing how difficult” implementing the permitting “is going to be. They’ve heard a lot from states about what a burden it will be. It adds no additional environmental protections.

“I think EPA will at least be neutral – that’s what they’ve said. They’re not going to support it, either. But ‘neutral’ is better than them opposing it – to get Democratic votes, anyway.”

On other commodity groups and the case…

“The agriculture community is fired up. I just got back from a meeting with all of them and everyone is raring to go at this.”